Commonwealth v. Scher

¶1concurring.

¶2I join in that portion of the Opinion Announcing the Judgment of the Court which holds that appellee failed to show that he suffered actual prejudice from the pre-arrest delay in this case. Proof of actual prejudice, of course, is an indispensable element of any claim that a delay in initiating prosecution violated due process. See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Commonwealth v. Snyder, 552 Pa. 44, 713 A.2d 596 (1998); Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978).

¶3I recognize that, in his Concurring Opinion, Mr. Justice Saylor draws a distinction between “actual” prejudice and “substantial” prejudice, and opines that both are necessary to establish the prejudice prong of the Marion/Lovasco test. Justice Saylor then concludes that, although appellee proved actual prejudice here, he did not prove substantial prejudice. It appears that the federal courts, beginning with Marionitself, have adverted to both “actual” and “substantial” prejudice, without it being entirely clear that the Supreme Court, or a majority of the Circuit Courts of Appeal, intend such a distinct two-pronged approach to the prejudice question. Compare Marion, 404 U.S. at 324-26, 92 S.Ct. 455 (referring first to “substantial prejudice” but thereafter only to “actual prejudice”) with Lovasco, 431 U.S. at 789, 97 S.Ct. 2044 (citing only Marion’s “actual prejudice” test). See also Acha v. United States, 910 F.2d 28, 32 (1st Cir.1990) (employing “actual” prejudice test; proof must be definite and not speculative) (citations omitted); United States v. Cornielle, 171 F.3d 748, 752 (2d Cir.1999) (using terms “actual” and “substantial” prejudice interchangeably; defining prejudice as “that sort of deprivation that impairs a defendant’s right to a fair trial”); United States v. Fulford, 825 F.2d 3, 9 (3d Cir.1987) (“actual” prejudice); United States v. Mmahat, 106 F.3d 89, 94-95 (5th Cir.1997) (“actual, substantial” prejudice); United States v. Rogers, 118 F.3d 466, 475-76 (6th Cir.1997) (using terms “actual,” “substantial,” and “actual substantial” prejudice interchangeably); United States v. McMutuary, 217 F.3d 477, *329481-82 (7th Cir.2000) (“A defendant’s burden to show actual and substantial prejudice is an exacting one; the show must rest upon more than mere speculative harm”); United States v. Edwards, 159 F.3d 1117, 1128 (8th Cir.1998) (“actually, substantially prejudiced”); United States v. Doe, 149 F.3d 945, 948 (9th Cir.1998) (“actual, non-speculative prejudice”); United States v. Wood, 207 F.3d 1222, 1235 (10th Cir.2000) (“actual” prejudice); United States v. Foxman, 87 F.3d 1220, 1223 (11th Cir.1996) (“actual substantial” prejudice). It appears that only one Circuit specifically approaches the question in a dual fashion, requiring proof of both actual and substantial prejudice. See Jones v. Angelone, 94 F.3d 900, 907 (4th Cir.1996) (holding that “a defendant [must not only] show actual prejudice, as opposed to mere speculative prejudice, ... but also ... any actual prejudice was substantial — that he was meaningfully impaired in his ability to defend against the state’s charges to such an extent that the disposition of the criminal proceeding was likely affected”). The U.S. Supreme Court has not directly addressed the question since Lovasco.

¶4I have no quarrel with the Angelonedistinction as cogently formulated and applied by Mr. Justice Saylor here. I nevertheless join the lead opinion on this question because: (1) our majority opinion in Snyderfollowed an actual prejudice approach, 713 A.2d at 601; (2) whether the Fourth Circuit’s Angeloneformulation is viewed as a matter of nomenclature or constitutional nuance, I am satisfied, based upon the lead opinion’s thorough review, that appellee failed to prove Marion/Lovasco prejudice; and (3) the narrowest ground of decision here is the absence of prejudice and I believe it is important to attempt to decide cases by clear majority opinion whenever possible, and particularly when a case is heard upon discretionary appeal. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391,---, 122 S.Ct. 1516, 1526-27, 152 L.Ed.2d 589 (2002) (O’Connor, J., concurring).

¶5Although the absence of prejudice alone is enough to decide this appeal, the lead opinion also addresses the second prong of the Marion/Lovasco due process test, which requires consideration of “the reasons for the delay.” Lovasco, 431 U.S. at *330790, 97 S.Ct. 2044. The lead opinion’s inquiry into this question is appropriate, in my view, given this Court’s supervisory role. The Superior Court panel opinion is published, and that panel adopted a super-minority approach to the evaluation of the reasons for pre-arrest delay, based upon a quarter-century-old opinion from the Ninth Circuit, United States v. Mays, 549 F.2d at 679 (9th Cir.1977), decided before Lovasco, which would permit a showing of mere negligence or lack of diligence in the investigation, combined with actual prejudice, to establish a due process violation.1 As the lead opinion notes, the Superior Court itself, sitting en banc in a subsequent appeal in the Snydercase, repudiated the Mays test. The lead opinion accurately explains why the Mays test is wrong and I join the lead opinion in rejecting that test.

¶6In place of the Mays test, however, the lead opinion rejects the prevailing view in the federal Circuit Courts. That view would require the defendant to prove that the pre-arrest delay was intentionally undertaken by the government for the purpose of gaming a tactical advantage over the accused in the prosecution. Instead of this bad faith standard, which derives from the explicit language employed by the United States Supreme Court in its decisions in Manon and Lovasco, the lead opinion would adopt a subjective recklessness/conscience-shocking standard. It is here that I part ways with the lead opinion.

¶7The lead opinion notes that, in Snyder, this Court addressed the Marion/Lovasco test at some length. We stated in Snyderthat those two cases “stand for the proposition that to establish a due process violation for a delay in prosecution, a defendant must show that the passing of time caused actual prejudice and that the prosecution lacked sufficient and prop*331er reasons for postponing the prosecution.” Snyder, 713 A.2d at 601. The trial court in Snyderhad concluded that the appellant there had not sustained his burden of proving actual prejudice, and thus it did not even inquire “whether the investigatory delay was intentional or proper.’ ” Id. at 599 (footnote omitted) (quoting trial court opinion). After determining that Snyder in fact had established actual prejudice, this Court remanded the case for the trial court to determine “if there were valid reasons to justify filing these charges after this extensive period of time.” Id. at 606. In our analysis of what may be deemed “proper reasons for the delay,” we opined that we “expressly disapprove[ ] of subjecting defendants to delayed prosecutions in which changing prosecutorial policies are the only reason to revive dormant investigations after the passage of time causes actual prejudice to the defense.” Id. at 605. The lead opinion today notes that our decision in Snydernecessarily rejected the majority view of the federal Circuit Courts that delay intentionally undertaken by the prosecution to gain a tactical advantage is the only circumstance where the second prong of Marion/Lovasco would be satisfied.

¶8The lead opinion attempts to further elucidate and clarify the second prong of the Marion/Lovasco test and, in so doing, strays even farther from the actual language in the U.S. Supreme Court’s decisions. The lead opinion would hold that insufficient or improper reasons for delay exist whenever consideration of the totality of the evidence “shows that the delay was the product of intentional, bad faith, or reckless conduct by the prosecution.” Opinion Announcing the Judgment of the Court at 25 (emphasis added). I joined in the Snyderopinion, and I recognize that the lead opinion fairly characterizes it today. However, upon further careful consideration of this recurring federal question, and particularly in light of the difficulties in the Pennsylvania experience since Snyder, which necessitate the lead opinion’s attempt to clarify the standard today, I am now firmly convinced that we should simply return to the standard actually articulated by the Supreme Court and followed by a majority of the Circuit *332Courts. Thus, I believe that a proper assessment of the reasons for the delay in initiating prosecution must be confined to the question of the prosecution’s bad faith — i.e., whether the delay was intentionally undertaken by the prosecution to gain a tactical advantage over the defendant.

¶9The lead opinion correctly notes that Article 1, Section 9, of the Pennsylvania Constitution is co-extensive with the due process protections of the United States Constitution and, thus, our query here is governed by cases from the U.S. Supreme Court, i.e., primarily, Marionand Lovasco. The U.S. Supreme Court noted in Lovascothat “the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment.” Lovasco, 431 U.S. at 790, 97 S.Ct. 2044. Because “the Due Process Clause has a limited role to play in protecting against oppressive delay,” id. at 789, 97 S.Ct. 2044, the Clause is violated only if the delay caused actual prejudice to the defendant and “was an intentional device to gain tactical advantage over the accused.” Marion, 404 U.S. at 324, 92 S.Ct. 455. See also Lovasco, supra.

¶10Given the specific language in the controlling opinions, it is not surprising that an overwhelming majority of federal Circuit Courts, including our Third Circuit Court of Appeals, have held that Marion/Lovasco requires proof that the government acted intentionally or in bad faith to cause delay. See United States v. Lebron-Gonzalez, 816 F.2d 823, 831 (1st Cir.1987) (“intent by the prosecution to gain a tactical advantage”); United States v. Hoo, 825 F.2d 667, 671 (2nd Cir.1987) (defendant must “show that the government had improperly delayed his prosecution in order to gain a tactical advantage”); United States v. Ismaili, 828 F.2d 153, 167 (3d Cir.1987) (defendant bears burden of proving that “the government intentionally delayed bringing the indictment in order to gain some advantage” over defendant); United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir.1996) (delay “intentionally undertaken by the government for the purpose of gaining some tactical advantage ... or for some other impermissible, bad faith purpose”); United States v. Rogers, 118 F.3d 466, 476 (6th Cir.1997) *333(defendant must prove delay was “device by the government to gain a tactical advantage”); United States v. Sowa, 34 F.3d 447, 450-52 (7th Cir.1994) (due process “only implicated if the government purposely delayed the indictment to take advantage, tactically, of the prejudice or otherwise acted in bad faith”; government bears burden to provide reasons for delay); United States v. Benshop, 138 F.3d 1229, 1232-33 (8th Cir.1998) (“Absent a showing that the government acted intentionally to harass or to gain a tactical advantage, no due process violation may be found”); United States v. Johnson, 120 F.3d 1107, 1110 (10th Cir.1997) (defendant must prove that “government delayed purposefully in order to gain a tactical advantage”); United States v. Foxman, 87 F.3d 1220, 1223 (11th Cir.1996) (delay must be “product of a deliberate act by the government designed to gain a tactical advantage”).2But see Howell v. Barker, 904 F.2d 889, 895 (4th Cir.1990) (applying general due process test, rather than more specific test promulgated in Marionand Lovasco); Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.1996) (noting that Fourth and Ninth Circuits employ “more lenient” standard); United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir.2001) (first prong of test requires actual prejudice and second prong requires showing that delay, when balanced against prosecution’s reasons for it, offends “fundamental conceptions of justice which lie at the base of our civil and political institutions”); United States v. Doe, 149 F.3d 945, 948 (9th Cir.1998) (same).

¶11This intentional, bad faith standard is also the formulation stated and actually applied by this Court in Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172, 179-181 (1978), a case which represented our first foray into this area after Lovasco, and a case cited with approval in Snyder. Many other state courts have also interpreted Marion/Lovasco as requiring a showing of intentional or bad faith conduct to establish a due *334process violation.3 As Professor La Fave has noted, “there is no discernible inclination of the lower courts to treat anything except an intent to hamper the defense as an improper reason.” 4 La Fave, et al., Criminal Procedure § 18.5(b), at 272 (2d ed.1999). Moreover, as another commentator has noted, the requirement that “the defendant proves that the government intentionally delayed the proceedings to gain a tactical advantage or to harass the defendant ... reflects judicial reluctance to interfere with prosecutorial discretion.” Sarah Jane Cole, Speedy Trial, II. Preliminary Proceedings, Thirtieth Annual Review of Criminal Procedure, 89 Georgetown Law Journal 1877, 1378 (May 2001) (citations omitted). As such, the requirement of intentional conduct is one dictated by considerations inherent in the Due Process Clause. Accordingly, in my view, any relaxation of the standard, if one is to be had, should come from the U.S. Supreme Court.

¶12Instead of following the weight of authority, and the actual language of Marion/Lovasco, the lead opinion would approve a test which focuses on the totality of the circumstances and which would permit a finding that Due Process was violated if the delay resulted from “intentional, bad faith, or reckless *335conduct by the prosecution.” Opinion Announcing the Judgment of the Court Op. at 1221 (emphasis added). In my view, a test that would involve the courts in balancing the prejudice to the defendant against less than intentional or bad faith conduct of the prosecution is inconsistent with the commands of the Due Process Clause. As the United States Court of Appeals for the Fifth Circuit reasoned in Crouch:

[SJeveral other considerations ... strongly militate against utilizing a ... balancing test to determine whether prejudicial preindictment delay violates due process and in favor of requiring that the delay have been intentionally caused by the prosecution to gain a tactical advantage over the defendant or for some other bad faith purpose.... The items to be placed on either side of the balance (imprecise in themselves) are wholly different from each other and have no possible common denominator that would allow determination of which ‘weighs’ the most____ Inevitably, then, a ‘length of the Chancellor’s foot’ sort of resolution will ensue and judges will necessarily define due process in each such weighing by their own ‘personal and private notions’ of fairness,’ contrary to the admonition of Lovasco.

‘[Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property,’ ... and hence ‘the Due Process Clause ... is not implicated by the lack of due care of an official causing unintended injury to life, liberty or property.’ ... Contrary to these principles, however, the [balancing] test would find a due process violation where the government acted in good faith and did not deliberately seek to prejudice the party ultimately accused.

¶13Crouch, 84 F.3d at 1512-13 (citations omitted) (emphasis in original). This reasoning, rooted as it is in the history and the purpose of the Due Process Clause, seems unimpeachable.

¶14Although the lead opinion recognizes that a negligence standard is unworkable, the recklessness standard it would approve amounts to nothing more than a heightened negli*336gence standard.4 As the U.S. Supreme Court has admonished, the Fourteenth Amendment should not become a “font of tort law.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). A heightened negligence standard is no less impractical than a mere negligence standard, i.e., it would still require “judicial oversight of decisions traditionally entrusted to the prosecutor.” Opinion Announcing the Judgment of the Court Op. at 1220. Consequently, the lead opinion’s standard opens the door to the type of hindsight and second-guessing employed here by the Superior Court and eschewed by the Supreme Court.

¶15The standard the lead opinion would adopt is also problematic because the lead opinion suggests an equivalence of the recklessness standard with a conscience-shocking standard. Opinion Announcing the Judgment of the Court Op. at 1229-30. In Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), however, the U.S. Supreme Court suggested that the terms “conscience-shocking” and “recklessness” are not synonymous. Indeed, a conscience-shocking standard is more closely aligned with intentional conduct than reckless conduct:

[Cjonduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.... Whether the point of the- conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but “less than intentional conduct, such as recklessness or ‘gross negligence’ ” is a matter for closer calls.

¶16*337Id. at 849, 118 S.Ct. 1708 (emphasis added). Since the terms “conscience-shocking” and “recklessness” do not always have equivalent connotations, the lead opinion’s internally inconsistent standard will perpetuate confusion in this area.

¶17More importantly, a conscience-shocking standard is a subjective standard far too reliant on individual judicial temperament to vindicate valid due process concerns. Simply put, what one judge may find shocking, another may not. As Justice Scalia noted in his concurrence in Lewis: “[Lewis ] resuscitates the ne plus ultra, the Napoleon Brandy, the Mahatma Ghandi, the Celophane of subjectivity, th’ ol’ ‘shocks-the-conscience’ test.” Id. at 861, 118 S.Ct. 1708 (Scalia, J., concurring) (emphasis in original). Such a subjective standard is an inappropriate measure for a claimed violation of due process. Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (“the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment”); Crouch, 84 F.3d at 1512-13.

¶18Significantly, this Court has approved a conscience-shocking standard in very limited circumstances — predominately in the area of weighing jury verdicts. See Commonwealth v. Williams, 554 Pa. 1, 720 A.2d 679 (1998) (conscience-shocking standard applicable to weight of evidence claims in criminal matter); Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90 (1995) (same); Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97 (1995) (same); G.J.D. v. Johnson, 552 Pa. 169, 713 A.2d 1127 (1998) (conscience-shocking standard applicable to weighing jury verdict for punitive damages); Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995) (conscience-shocking standard applicable to jury’s award of no damages). The remedy in such instances is always a new trial, not an outright dismissal of the prosecution.

¶19I believe it is unwise to apply such a subjective standard to requests for outright dismissal of charges premised on prearrest delay. This is particularly so given our jurisprudence in double jeopardy/prosecutorial misconduct cases — a jurisprudence which, since it involves the extreme sanction of dismiss*338al and focuses on prosecutorial conduct, is most similar to that presented here. In the prosecutorial misconduct eases, this Court prohibits a second prosecution only where it has been determined that the misconduct was intentionally undertaken to deny the defendant a fair trial. See Commonwealth v. Martorano, 559 Pa. 533, 741 A.2d 1221 (1999) (state double jeopardy provision barred retrial after reversal of defendants’ convictions for first-degree murder and criminal conspiracy based on prosecutorial misconduct, where prosecutor acted in bad faith throughout trial); Commonwealth v. Diehl, 532 Pa. 214, 615 A.2d 690 (1992) (double jeopardy, as it relates to prosecutorial misconduct, attaches where prosecutorial misconduct is calculated to trigger mistrial); Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992); Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918, 923 (1978) (rejecting recklessness/gross negligence standard).

¶20This Court in Potterrejected a negligence standard in double jeopardy/prosecutorial misconduct cases precisely because it failed to balance appropriately the interests at issue. The Court reasoned that:

Only when a deprivation of defendant’s right to continue a trial before a particular tribunal is accomplished without his choice and no ‘manifest necessity’ for so doing is present, or when that deprivation is caused by misconduct designed to force the defendant to seek a mistrial, is the defendant so unjustifiably deprived of his right to the first jury’s decision that society’s interest in the punishment of those properly found guilty must give way to a discharge of the accused. When this deprivation is not the evident purpose of the prosecution, it is the defendant’s and society’s interest in a fair trial that is primarily affected, and the remedy of a new trial, while it does of course affect the defendant’s interest in the first jury’s decision, is necessary and sufficient to vindicate both the citizen’s interest in a fair trial and the societal interest in bringing those properly found guilty to punishment.... [T]he public interest in convicting those guilty of crimes is too important an interest to be subordinated to a concept of a prosecuting attorney’s negligence, *339even though it be labeled ‘gross’; defendants are adequately protected by the sanction of complete discharge which is imposed when the government’s agent acts with the intent to abort the trial.

¶21Id. at 925. The same reasoning should guide our formulation of a standard in the pre-arrest delay area.

¶22The primary protection against delayed prosecutions is the applicable statute of limitations; the General Assembly is generally in the best position to balance the interests that inform the determination of the appropriate limitations period. As noted in Snyder, 713 A.2d at 599-600, there is no statute of limitations on murder prosecutions because of the gravity of the offense, and thus the only available challenge is a constitutional one, to wit, whether the truly fundamental concerns suggested by this Nation’s traditional notion of Due Process are implicated. See Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (Due Process is concerned with “those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ ... and which define ‘the community’s sense of fair play and decency’ ”) (citations omitted). Any right to avoid defending against allegedly stale charges must be tempered by the primacy placed upon apprehending and prosecuting murderers, and the deference shown the executive and state function. The U.S. Supreme Court and this Court have appropriately placed a heavy burden upon a defendant claiming a due process violation for pre-arrest delay. The constitutional precepts at issue are best served by requiring proof of intentional or bad faith prosecutorial conduct before a delay will be found to violate due process.

¶23Accordingly, although I concur in the judgment, I respectfully disagree with the lead opinion’s proposed further relaxation of the Marion/Lovasco standard.